The staff of the Committee on Open Government is authorized to
issue advisory opinions. The ensuing staff advisory opinion is
based solely upon the facts presented in your correspondence.

Dear Mr. Callan:

I have received your letter of March 2 and related
correspondence.

According to the materials, in response to a request by the
Brentwood Union Free School District for a report of all certiorari
writs, the District was informed that the Town's computer system
had been reformatted, that the writs are not filed as they once had
been and that, therefore, the record sought "does not exist and
must be created specifically for [the District's] needs." As such,
the District was informed that a "pre-paid fee of $350.00 will
be
charged for the creation of computer program with an additional fee
of $50.00 for each hour of computer time needed to produce the
program."

You have sought an advisory opinion concerning the propriety
of the response. In this regard, I offer the following comments.

First, as you are aware, the Freedom of Information Law
pertains to existing records. Section 89(3) of the Law states in
part that an agency need not create a record in response to a
request. It is emphasized, however, that section 86(4) of the
Freedom of Information Law defines the term "record" expansively
to
include:
"any information kept, held, filed, produced,
reproduced by, with or for an agency or the
state legislature, in any physical form
whatsoever including, but not limited to,
reports, statements, examinations, memoranda,
opinions, folders, files, books, manuals,
pamphlets, forms, papers, designs, drawings,
maps, photos, letters, microfilms, computer
tapes or discs, rules, regulations or codes."

Based upon the language quoted above, if information is maintained
in some physical form, it would in my opinion constitute a "record"
subject to rights of access conferred by the Law. Further, the
definition of "record" includes specific reference to computer
tapes and discs, and it was held more than ten years ago that
"[i]nformation is increasingly being stored in computers and access
to such data should not be restricted merely because it is not in
printed form" [Babigian v. Evans, 427 NYS 2d 688, 691 (1980);
aff'd
97 AD 2d 992 (1983); see also, Szikszay v. Buelow, 436 NYS 2d 558
(1981)].

Second, when information is maintained electronically, in a
computer, for example, it has been advised that if the information
sought is available under the Freedom of Information Law and may be
retrieved by means of existing computer programs, an agency is
required to disclose the information. In that kind of situation,
the agency in my view would merely be retrieving data that it has
the capacity to retrieve. Disclosure may be accomplished either by
printing out the data on paper or perhaps by duplicating the data
on another storage mechanism, such as a computer tape or disk. On
the other hand, if information sought can be retrieved from a
computer or other storage medium only by means of new programming
or the alteration of existing programs, those steps would, in my
opinion, be the equivalent of creating a new record. As stated
earlier, since section 89(3) does not require an agency to create
a record, I do not believe that an agency would be required by the
Freedom of Information to reprogram or develop new programs to
retrieve information that would otherwise be available [see
Guerrier v. Hernandez-Cuebas, 165 AD 2d 218 (1991)].

If an agency chooses to engage in the development of new or
altered programs, I believe that it would be acting beyond the
requirements of the Freedom of Information Law. As such, I believe
that it could charge for such a service based upon considerations
separate from the provisions concerning the assessment of fees
described in §87(1)(b)(iii) of the Freedom of Information Law.

That provision pertains to existing records and requires
agencies to establish rules and regulations pertaining to:

"the fees for copies of records which shall
not exceed twenty-five cents per photocopy not
in excess of nine by fourteen inches, or the
actual cost of reproducing any other record,
except when a different fee is otherwise
prescribed by statute."

Consequently, once a program has been created or altered, and
information can be retrieved on the basis of that program, I
believe that an agency may charge only on the basis of the actual
cost of reproduction, i.e., computer time, plus the cost of an
information storage medium, such as paper, a computer tape or a
computer disk. In my view, if the actual cost of computer time is
less than $50.00 per hour, the fee of $50.00 would be inconsistent
with the Freedom of Information Law. Again, the fee in that
circumstance in my opinion could appropriately be based on the
actual cost of generating the data.

I hope that I have been of some assistance. Should any
further questions arise, please feel free to contact me.